Macpherson, J.This is an application in revision against the order of Mr. S.B. Dhavle, Sessions Judge of Darbhanga, affirming the conviction of the petitioner Jagannath Misra, u/s 379, I.P.C., in the Court of Mr. A.N. Chakravarty, Sub-Division Magistrate of Darbhanga and the sentence of three months rigorous imprisonment imposed upon him.

2. On behalf of the petitioner Mr. Murari Prasad contends, first, that the charge of theft cannot stand both because the she-calf which was the subject of the charge was not in possession of the complainant and because it was not taken by the petitioner dishonestly and, secondly, that in any case the sentence is excessive.

3. The facts are briefly as follows: On the last Bakrid day Salim Darzi sacrificed a cow in his house in Darbhanga town. Some local Hindus apprehended that he was also about to sacrifice a she-calf which he had in his house. About a thousand Hindus were assembled in front of Salims house and senior officers of police were straining every nerve to preserve the peace. Some sort of agreement is found to have been arrived at (hesitatingly on the part of the Mahomedans) that the calf should remain at the house of Mahabir Laheri, immediate neighbour of Salim, and it was tied to a bamboo post in the bari. Then the petitioner arrived on the scene and at once the position altered for the worse. He began to shout that the animal could not be allowed to be kept there and must be removed elsewhere. Under the order of the petitioner his co-accused Ruplal Chaudhuri untied the calf from the bamboo post on the pretence (to Babu Ramnewaz Singh, Court Inspector who had secured the agreement) of placing the animal in the shade of Mahabirs house and then the petitioner and his co-accused drove the animal though Mahabirs house and then away along the road with a large following of Hindus. Their action was without the consent of Salim or of Mahabir. The Mahomedans were infuriated and armed police had to be requisitioned to prevent communal rioting. Later the police recovered the calf from the house of one Fakirchand Lal.

4. The learned Sessions Judge differing from the Magistrate did not find it established that as many as five persons were concerned in removing the calf. The two accused had been charged with unlawful assembly with the common object of committing the theft of a she-calf belonging to Salim Darzi and u/s 379 with the theft of the calf by taking it out of the possession of Salim. The Magistrate convicted under Sections 143 and 279 and sentenced the petitioner to three months for each offence, the sentences to run concurrently, and his co-accused Ruplal Chaudhuri to a fine of Rs. 100 u/s 143. On his findings the learned Sessions Judge acquitted petitioner of the charge of unlawful assembly but maintained the convictions u/s 379 and the sentence on the petitioner, and imposed a fine of Rs. 100 on Ruplal Chaudhuri. In support of the contention that the charge has not been proved because the calf was not taken out of the possession of Salim reliance is placed upon the finding in appeal:

It was not absolutely necessary to state in the charge from whose possession the animal was stolen, nor has it been suggested before me that the mention of Salims possession has in any way misled or made any difference to the defence. Even if as I think, the calf was In Mahabirs possession, appellant had no authority to take her away.... I do not think that Mahabir really consented (by himself or by his son) to the removal of the cow from his house or abandoned his possession of the animal.

5. To my mind the correct view is that possession was actually with Salim. The "agreement" on his part extended only to having his calf tied in the adjoining yard of Mahabir or at most in the shade of his house and he retained the possession of the animal and did not abandon it to Mahabir. The authors of the Code were aware how difficult it is to pronounce as to the circumstances which constitute possession. All that they were able to do was to provide in Section 27 for oases likely to occur very often: "Much uncertainty will still remain. This we cannot prevent" But my horse in a neighbours stable or my motor ear in a public garage is still in my possession. It is open to this Court to revise a finding based on a misapprehension of the law. I have no hesitation in holding that in the circumstances of this case the proper finding is that Salim was in possession of the calf and not Mahabir as the learned Sessions Judge hesitatingly finds.

6. Little difficulty is presented by the question of dishonest intention. Convictions u/s 379 in similar circumstances have been maintained in numerous unreported communal eases. It is indeed urged that the removal of the calf by the petitioner had the same object as the removal of it to Mahabirs yard, that is to say, to save it from sacrifice and not to deprive the owner of the benefit arising from possession. But the first removal was effected with the consent of the owner in whose possession the animal remained.

7. In support of the contention that the removal by the petitioner with the object stated did not constitute dishonesty, reliance is placed as in the appellate Court on the decisions in Nabi Bakhsh v. Queen-Empress [1898] 25 Cal. 416 and Queen-Empress v. Raghunath Rai [1892] 15 All. 22 But, with great respect, the learned Judges in the former case appear to confuse intention with motive which is immaterial in determining whether an act is done dishonestly under the definition of that term. A Pull Bench of the Calcutta High Court held in Queen-Empress v. Sri Ghurn Chungi [1895] 22 Cal. 1017 that it is not necessary that the taking should be permanent or with an intention to appropriate the thing taken. Incidentally, it may be indicated that by the removal of his property the owner underwent mental anxiety and lost face among the community and the petitioners real motive was not the safety of the calf but to do down the owner and other Mahomedans and thereby acquire the plaudits of his co-religionists which he coveted. There is also nothing to show that the calf would ever have been returned to its owner. As to Queen-Empress v. Raghunath [1892]15 All. 22 that decision of a single Judge was admittedly limited to the particular facts of the case as found by the appellate Court and the decision of the Allahabad High Court which covers the present case in Queen-Empress v. Rambaran [1893] 15 all. 299. Much of what is set our in that decision could appropriately be reproduced here.

8. The short answer, however, is that the facts bring the petitioner definitely with in Section 23 and 24 I.P.C. As regards sentence it is, in my judgment, by no means excessive in the circumstances. The act was entirely gratuitous and for the personal glorification of the petitioner who appears to be a dangerous meddler and in particular was regardless of the critical situation which must and did arise in consequence of it. The application is without merits and the Rule is discharged. The petitioner must surrender to undergo the unexpired portion of his sentence. I would remark that in a case of this character the Crown ought, in my opinion, to have been represented.